Mining Claims Under the General Mining Laws; Surface Management

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-300-1990-00]

RIN 1004-AD22

Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Supplemental proposed rule; reopening of comment period on

draft environmental impact statement.

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SUMMARY: The Bureau of Land Management (BLM) announces the reopening of

the comment period on our

[[Page 57614]]

surface management proposed rule (43 CFR part 3809) and the associated

draft environmental impact statement (EIS). We are taking this action

to carry out a provision of a recently enacted law requiring us to

reopen the comment period on the proposed rule. This action enables the

public and other interested parties to comment on the proposed rule and

the draft EIS following publication of a report by the National Academy

of Sciences (NAS) on hardrock mining on Federal lands. We are

supplementing the proposed rule with recommendations from the NAS study

and raising some related topics. And, we are responding to comments on

our estimate of burden hours associated with the proposed rule.

DATES: Send your comments to reach BLM by February 23, 2000.

ADDRESSES: You may mail comments to Bureau of Land Management,

Administrative Record, Nevada State Office, PO Box 12000, Reno, Nevada

89520-0006. You may hand-deliver comments to BLM at 1340 Financial

Boulevard, Reno, Nevada 89520. Submit electronic comments and other

data to WOC[email protected]. For other information about filing comments

electronically, see the SUPPLEMENTARY INFORMATION section under

``Electronic access and filing address.''

FOR FURTHER INFORMATION CONTACT: Robert M. Anderson, 202/208-4201; or

Michael Schwartz, 202/452-5198. Individuals who use a

telecommunications device for the deaf (TDD) may contact us through the

Federal Information Relay Service at 1-800/877-8339.

SUPPLEMENTARY INFORMATION:

I. How Can I Comment on the Proposed Rule and draft EIS?

II. Why is BLM Reopening the Comment Period?

III. How Can I Obtain a Copy of the National Academy of Sciences

Report?

IV. Which NAS Recommendations Identify Regulatory Gaps?

V. How Would BLM Regulate the Use of Suction Dredges?

VI. How Does BLM Define Certain Terms Used in this Subpart?

VII. Under What Circumstances May an Operator Not Begin

Operations 15 Business Days After Filing a Notice?

VIII. How Would BLM Pay for Interim Site Care and Maintenance

Until We Issue a Reclamation Contract?

IX. Would BLM Allow State Director Review of Decisions?

X. How Did BLM Meet its Procedural Obligations?

I. How Can I Comment on the Proposed Rule and Draft EIS?

Electronic Access and Filing Address

You may view an electronic version of this supplemental proposed

rule; the February 9, 1999, proposed rule; and the draft EIS on BLM's

Internet home page: www.blm.gov. You may also comment via the Internet

to: WOC[email protected]. Please also include ``Attention: RIN 1004-AD22''

and your name and return address in your Internet message. If you do

not receive a confirmation from the system that we have received your

Internet message, call us directly at 202/452-5030.

Written Comments

Your written comments on the proposed rule or draft EIS should be

specific and confined to issues pertinent to the proposed rule, and

explain the reason for any recommended change. Where possible, you

should reference the specific section or paragraph of the proposed rule

or draft EIS that you are addressing. Refer to the February 9, 1999,

proposed rule (64 FR 6422) or the February 17, 1999 notice of

availability of the draft EIS (64 FR 7905) for detailed information.

You need not re-submit comments that you sent us previously. We

will consider comments submitted during the previous comment period, as

well as comments submitted during this new comment period, when we

prepare the final rule and final EIS.

We are not required to consider, or include in the Administrative

Record for the final rule, comments that we receive after the close of

the comment period (See DATES) or comments delivered to an address

other than those listed above (See ADDRESSES).

BLM will make comments, including names, street addresses, and

other contact information of respondents, available for public review

at our Nevada State Office (See ADDRESSES) during regular business

hours (8 a.m. to 4 p.m.), Monday through Friday, except Federal

holidays. We will also make comments available at our Washington, DC

office, 1620 L Street, NW, Room 401, during regular business hours (8

a.m. to 4:30 p.m.), Monday through Friday, except Federal holidays.

Requests for Confidentiality

Individuals who send us comments on the proposed rule may request

confidentiality. If you wish to request that BLM consider withholding

your name; street address; and other contact information, such as

Internet address, FAX or phone number from public review or from

disclosure under the Freedom of Information Act, you must state this

prominently at the beginning of your comment. We will honor requests

for confidentiality on a case-by-case basis to the extent allowed by

law. We will make available for public inspection in their entirety all

submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses.

II. Why is BLM Re-Opening the Comment Period?

On February 9, 1999, we published in the Federal Register a

proposed rule to revise the regulations governing mining operations

involving metallic and some other minerals on public lands administered

by BLM. See 64 FR 6422. We call these regulations the surface

management regulations. They are located in subpart 3809 of part 3800

of Title 43 of the Code of Federal Regulations (43 CFR Part 3800,

subpart 3809). For this reason, they are also called the ``3809''

regulations. The comment period opened on February 9, 1999, and closed

on May 10, 1999. We issued the notice of availability for the draft

environmental impact statement (EIS) that analyzes the potential

impacts of the 3809 regulations on February 17, 1999 (64 FR 7905). The

comment period on the draft EIS also closed on May 10, 1999.

In the 1998 Omnibus Consolidated and Emergency Supplemental

Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed

BLM to pay for a study by the National Academy of Sciences (NAS) Board

on Earth Sciences and Resources. The study was to examine the

environmental and reclamation requirements relating to mining of

locatable minerals on Federal lands and the adequacy of those

requirements to prevent unnecessary or undue degradation of Federal

lands in each State in which such mining occurs. The law directed NAS

to complete the study by July 31, 1999.

In the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-

31, sec. 3002), Congress prohibited the Department of the Interior from

completing its work on the February 9, 1999, proposed rule and issuing

a final rule until we provide at least 120 days for public comment on

the proposed rule after July 31, 1999. The NAS has now completed and

published its study, entitled, ``Hardrock Mining on Federal Lands.''

Accordingly, we are reopening the comment period on the proposed rule

for 120 days. This action will allow the public to comment on the

proposed

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rule in the context of the NAS report. In addition, we are reopening

the comment period on the associated draft EIS for the same period.

III. How Can I Obtain a Copy of the National Academy of Sciences

Report?

The National Academy of Sciences has posted the report on its

Internet site. The address is www.nap.edu/catalog/9682.html. You can

request a paper copy of the report by contacting NAS at National

Academy of Sciences, Board on Earth Sciences and Resources, 2101

Constitution Avenue, NW, Washington, DC 20418; telephone: 202/334-2744.

If you gave BLM an address with your comment on the proposed rule,

draft EIS, or during the scoping process for the EIS, BLM has already

arranged for NAS to mail you a copy of the study; you need not request

another copy.

IV. Which NAS Recommendations Identify Regulatory Gaps?

The NAS study contains a number of recommendations for the

coordination of Federal and State regulations to ensure environmental

protection, increase efficiency, avoid duplication and delay, and

identify the most cost-effective manner for implementation. Some of the

recommendations are directed at BLM's regulatory framework. Others are

aimed at the Forest Service, at changes in laws, or at areas that are

not regulatory in nature, such as the recommendation to create a

management information system.

BLM is carefully considering all of the NAS recommendations and

seeks public comment on their validity and relevance to the proposed

rule. Because the baseline for the study was the existing regulatory

framework rather than the revisions to that framework that we proposed

on February 9, 1999 (64 FR 6422), some of the NAS recommendations that

are directed at BLM's regulatory framework overlap with the 3809

proposed rule.

In the interest of full and informed public comment on the proposed

rule, we are including in this supplemental proposed rule those NAS

recommendations that identify gaps in the existing regulations. This

notice contains the verbatim text of the 3809-related NAS

recommendations that identify regulatory gaps, along with explanatory

material that highlights areas where we are particularly interested in

receiving public comment. By doing so, we don't prejudge the validity

of the NAS recommendations, and we reserve the right to adopt, modify,

or decline to adopt any NAS recommendation. Under the Administrative

Procedure Act, we must provide the public with adequate notice and an

opportunity to comment on proposed regulatory changes (5 U.S.C. 553).

Therefore, we are notifying you that we are considering one or more of

the NAS recommendations and asking you for comments.

NAS Recommendation: ``Financial assurance should be required for

reclamation of disturbances to the environment caused by all mining

activities beyond those classified as casual use, even if the area

disturbed is less than five acres.''

Request for Comments: Our 3809 proposed rule would require a

financial guarantee for any operation greater than casual use. See

proposed Sec. 3809.552(a). BLM and the NAS study agree that lack of

financial guarantee for notice-level operations constitutes a gap in

the current rules.

However, the NAS study and the 3809 proposed rule differ concerning

how financial guarantee amounts should be established. The NAS study

recommends that we establish ``standard bond amounts'' for certain

types of activities in specific kinds of terrain, especially for the

activities of prospectors, small exploration companies, and small

miners. According to the NAS study, BLM should use these standard bond

amounts, which would be in the form of a certain number of dollars per

acre of land disturbed, instead of detailed calculations of bond

amounts based on the engineering design of a mine or mill. The 3809

proposed rule would base financial guarantee amounts on the estimated

reclamation cost as if BLM were to contract with a third party to

reclaim an operation following the requirements of the reclamation

plan. See proposed Sec. 3809.552(a).

We specifically request comments on whether standard bond amounts

would be preferable to actual-cost financial guarantees. We are

particularly interested in comments on how the standard amounts should

be set; that is, should we base them on standard industry cost

estimating manuals, recent actual cost experience, certified estimates

from third-party professional engineers, or on something else. The BLM

regulation that was remanded by the Federal courts in May 1998 set

minimum standard bond amounts of $1,000 per acre (or fraction thereof)

for notices and $2,000 per acre (or fraction thereof) for plans of

operations. We would also like comments on whether and under what

circumstances departures from the standard bond amounts (up or down)

are appropriate.

NAS Recommendation: ``Plans of operations should be required for

mining and milling operations, other than those classified as casual

use or exploration activities, even if the area disturbed is less than

five acres.''

Request for Comments: This recommendation reflects the NAS

observation that unnecessary or undue degradation occurs on some

notice-level mining operations. Our 3809 proposal agrees that this is a

problem and contained two options for addressing it. Proposed

Sec. 3809.11 (Alternative 1) would limit use of notices by requiring a

plan of operations where, among other things, operations involve

leaching or use of chemicals (proposed Sec. 3809.11(f)) or are in

national monuments and national conservation areas administered by BLM

(proposed Sec. 3809.11(j)(7)). Proposed Sec. 3809.11 (``Forest

Service'' Alternative) would limit use of notices by requiring a plan

of operations whenever there is ``significant disturbance of surface

resources,'' regardless of the size of the disturbance.

The NAS recommendation, if adopted by BLM into the 3809

regulations, would have the effect of requiring a plan of operations

for all mining and milling operations regardless of the size of the

disturbance, thereby limiting notices to exploration activities. This

approach is somewhat different from the two options in our proposal. We

are asking the public specifically to comment on incorporating this NAS

recommendation into the 3809 regulations; that is, whether we should

limit the use of notices to exploration activities and require plans of

operations for all other mining and milling operations, regardless of

the size of the disturbance. We are particularly interested in comments

on what activities we should consider ``exploration'' and eligible for

a notice. For example, the NAS study specifically mentions ``bulk

sampling,'' which it identifies as extraction of 10 to 1,000 tons or

more of presumed ore, as a kind of advanced exploration activity that

should generally be authorized by a plan of operations, not a notice.

In addition to the two options in our proposal and the NAS

recommendation discussed above, BLM is also considering another option,

namely, to require an operator to file a plan of operations if BLM

determines that proposed notice-level operations may adversely affect

proposed or listed threatened or endangered species or their designated

critical habitat. This approach would not be as restrictive as the NAS

recommendation, but would limit the use of notices to a greater degree

than that allowed under Alternative 1 of the proposed rule. In

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these circumstances, BLM could work to comply with the Endangered

Species Act through a programmatic agreement with the appropriate

agency, either the Fish and Wildlife Service or the National Marine

Fisheries Service. We specifically request comments on this issue.

NAS Recommendation: ``BLM and the Forest Service should revise

their regulations to provide more effective criteria for modifications

to plans of operations, where necessary, to protect the federal

lands.''

Request for Comments: NAS based this recommendation on comments it

received that expressed concern about the ability of BLM and the Forest

Service to require modifications of plans of operations in light of new

circumstances or information, such as acid drainage, problems with

water balance, adequacy of approved containment structures, mine

closure, or discovery of impacts on wells and springs. We agree with

this concern that the ability to require operators to make necessary

modifications is essential to prevent unnecessary or undue degradation,

and for this reason, we included provisions addressing this issue in

our 3809 proposal. See proposed Secs. 3809.430 to 3809.432.

The NAS study also raised the issue of whether our regulations

should require a periodic review or reopening of plans of operations as

a way of addressing changes in the operation or new information that

may arise. We specifically request comments from the public on whether

we should require this type of periodic review of plans of operations,

and if so, what the interval between reviews should be, that is, one

year, two years, five years, or longer.

NAS Recommendation: ``BLM and the Forest Service should adopt

consistent regulations that (a) define the conditions under which mines

will be considered to be temporarily closed; (b) require that interim

management plans be submitted for such periods; and (c) define the

conditions under which temporary closure becomes permanent and all

reclamation and closure requirements must be completed.''

Request for Comments: NAS based this recommendation on the fact

that temporary closures as a result of low mineral prices may cause

environmental problems if appropriate management measures are not

undertaken. The NAS study takes the position that land management

agencies need to have the authority to require an operator to close a

mine properly, rather than allowing it to remain in limbo if poor

market conditions persist.

We agree with this concern, and our proposal contains provisions

applicable to notices and plans of operations that would require an

operator who stops conducting operations for any period of time to

maintain public lands within the project area in a safe and clean

condition, prevent unnecessary or undue degradation, and maintain an

adequate financial guarantee. See proposed Secs. 3809.334 and 3809.424.

If the period of non-operation is likely to cause unnecessary or undue

degradation, these provisions allow BLM to require the operator to take

all steps necessary to prevent unnecessary or undue degradation and

require the operator to remove all structures, equipment, and other

facilities and reclaim the project area. In the case of plans of

operations, our 3809 proposed rule would allow BLM to review operations

that are inactive for 5 consecutive years to determine if we should

terminate the plan of operations and direct final reclamation and

closure. We also proposed a number of provisions to address abandonment

of operations and forfeiture of financial guarantee. See, for example,

proposed Secs. 3809.424(a)(4) and 3809.595 through 3809.599.

We are interested in receiving public comments on whether we should

define the conditions under which we will consider mines to be

temporarily closed, and if so, how. Proposed Secs. 3809. 334(b)(2) and

3809.424(a)(2) use the term ``extended period of non-operations for

other than seasonal operations.'' We intended that the field staff have

some flexibility in applying this concept. An alternative approach

would be to specify an appropriate period of time after which we would

consider an inactive operation to be temporarily closed, such as 90

days, 180 days, one year, or longer.

With regard to the NAS recommendation that we require an interim

management plan for periods of temporary closure, we would like public

comment on whether this requirement would be a significant burden and

on what should be included in the interim management plan, such as

security measures to protect the public and wildlife from danger,

erosion control measures, water treatment plans, waste disposal,

equipment removal, and the like.

We would also like public comments on the NAS recommendation that

we define the conditions under which temporary closure becomes

permanent and triggers final reclamation and closure. Under proposed

Sec. 3809.424(a)(3), we would review plans of operations (but not

notice-level operations) after five consecutive years of inactivity. We

do not view this proposed provision as precluding us from reviewing

operations after shorter periods of inactivity, if circumstances

warrant. Other approaches might include requiring periodic review or

reopening of plans of operations regardless of whether the operation is

inactive or not, as discussed above, or using indicators of potential

future site activity, such as the presence of equipment or maintenance

work on facilities and structures, to guide us in determining whether a

temporarily closed operation should be permanently closed.

NAS Recommendation: ``Federal land managers in BLM and the Forest

Service should have both (1) authority to issue administrative

penalties for violations of their regulatory requirements, subject to

appropriate due process, and (2) clear procedures for referring

activities to other federal and state agencies for enforcement.''

Request for Comments: The NAS bases this recommendation on the fact

that the existing 3809 regulations require BLM field staff to seek a

court injunction to compel an operator to respond to a notice of

noncompliance--an often slow and lengthy process. The NAS study takes

the position that administrative penalties are a credible and

expeditious means to secure compliance. We agree with the NAS concern,

and our proposal included provisions outlining enforcement actions and

administrative penalties. See Secs. 3809.600 through 3809.604 and

3809.700 through 3809.703. We included due process provisions in our

appeals section, proposed Sec. 3809.800. We also proposed to address

the issue of coordination of enforcement efforts with State agencies

through our Federal/State Agreements provisions. See, for example,

proposed Secs. 3809.201 and 3809.202.

We request public comments on whether, in light of the NAS

recommendation, we should have additional enforcement and penalty

provisions.

NAS Recommendation: ``BLM and the Forest Service should plan for

and assure the long-term post-closure management of mine sites on

federal lands.''

Request for Comments: The NAS study based this recommendation on

the view that current regulatory programs have only recently focused on

post-closure management needs of mine sites on Federal lands. According

to the NAS study, Federal land managers and those conducting operations

on Federal lands

[[Page 57617]]

should address the following management requirements for each site:

Measures needed to preserve future mineral access;

Residual public safety hazards and the need for fences,

signs, and other features that must be periodically checked and

maintained;

Measures needed to assure the integrity of closed waste

units, including the monitoring of tailings pond caps and waste rock

and leach pad covers and their possible repair because of erosion or

other failure, and the checking of adit plugs for continued

effectiveness;

Long-term environmental monitoring required to assure that

the site remains stable and does not become a source of off-site

contamination and the implementation of appropriate corrective

measures;

The operation and maintenance of any water treatment

facilities required to maintain water quality compliance of the site

over the long term; and

A financial assurance to ensure implementation of these

post-closure management requirements.

The NAS study also highlighted the importance of ensuring funding

for long-term or perpetual water treatment facilities.

We agree with this concern, and our proposed rule addresses this

issue in a number of ways. For example, we are proposing to require

operators to establish a trust fund or other funding mechanism, where

BLM identifies the need for it, to ensure continuing long-term

treatment to achieve water quality standards and for other long-term,

post-mining maintenance requirements. See proposed Sec. 3809.552(c).

The 3809 proposal would also put operators and mining claim holders on

notice that they are jointly and severally liable for obligations that

accrue while they held their interests, and that relinquishment,

forfeiture, or abandonment of a mining claim doesn't relieve them of

their responsibility. See proposed Sec. 3809.116. We also propose that

bond release wouldn't release mining claimants or operators from their

reclamation obligation. See proposed Sec. 3809.592. BLM believes that,

taken together, these proposed provisions would provide funding for,

and address the issue of responsibility for, long-term post-closure

management. As the NAS study points out, however, there may be a need

for additional measures. For this reason, we invite public comment on

whether the 3809 regulations should incorporate any of the specific

measures identified by the NAS study and listed above, and require, for

example, that an operator address them in a post-mine closure plan that

BLM would have to approve before release of the financial guarantee.

V. How Would BLM Regulate the Use of Suction Dredges?

This part of the supplemental proposed rule clarifies the intent

and meaning of the February 9, 1999 proposed rule and discusses two

additional options for regulating the use of suction dredges. Proposed

Sec. 3809.11(h) (Alternative 1) contains provisions that would regulate

the use of suction dredges. We believe, based on several comments we

received, that confusion may exist about the intent and meaning of

those proposed provisions. For this reason, we want to clarify that for

portable suction dredges with an intake diameter of more than 4 inches,

BLM proposed that an operator would have to submit to BLM a notice or

plan of operation, whichever is appropriate.

Under the proposal, if operations involve the use of a portable

suction dredge with an intake diameter of 4 inches or less, the

operator would not have to submit to BLM a notice or plan of operations

if two conditions were met. First, the State would have to give some

sort of authorization to use the dredge, such as a permit. Second, BLM

and the State would have to have a written agreement under which BLM

agrees that the State will authorize the use of dredges. Both

conditions would have to be met. In cases where a State does not

regulate suction dredges, an operator would have to submit to BLM a

notice or plan of operations, whichever is appropriate, regardless of

the size of the dredge.

The proposal would continue current policy that use of a portable

suction dredge is not casual use. The Interior Board of Land Appeals

has ruled that suction dredges fall within the definition of

``mechanized earth moving equipment'' at 43 CFR 3809.0-5, which are

specifically not considered casual use. See Pierre J. Ott, 125 IBLA

250, and Lloyd L. Jones, 125 IBLA 94. We hope this clarifies what we

meant in the February 9, 1999, proposal and encourage the public to

comment on it again.

Also in response to comments on the proposed rule, we want to

identify two options that we are considering and request public comment

on them. We are considering adopting provisions that would enable an

operator to use a portable suction dredge under a State authorization

regardless of the size of the dredge. That is, instead of deferring to

State regulation only when the dredge is under 4 inches, as originally

proposed, we would allow an operator to use any size dredge if it was

regulated by the State and the State and BLM have an agreement to this

effect. This option would constitute a relaxation of the original

proposal.

The other option we are considering is to require a plan of

operations for the use of a portable suction dredge, regardless of

intake diameter, when the dredge would be used in a waterway that

supports species of fish that are listed, or proposed to be listed, as

threatened or endangered under the Endangered Species Act. This option

is intended to prevent impacts to fish populations and their spawning

grounds or nests and represents an incremental tightening of the

original proposal. We request public comment on these two options. A

final rule could incorporate one or both of these options.

VI. How Does BLM Define Certain Terms Used in This Subpart?

In our proposed definition of ``casual use,'' we said that casual

use doesn't include use of motorized vehicles in areas designated as

``closed'' to off-road vehicles (proposed Sec. 3809.5). This means that

if an operator planned to use an off-road vehicle in a closed area, the

operator would have to file a notice or proposed plan of operations,

whichever is appropriate. We would like to clarify that this wouldn't

mean that use of off-road vehicles in areas designated as ``open'' or

``limited'' is totally unrestricted. Use of off-road vehicles is

regulated under BLM's existing regulations. See 43 CFR part 8340.

Generally, off-road vehicle use is permitted on those areas and trails

designated as open to off-road vehicle use; however, any person

operating an off-road vehicle on those areas and trails designated as

``limited'' must conform to all restrictions applicable to those areas

and trails. To make this clear, the final rule could include a cross-

reference to BLM's off-road vehicle regulations.

VII. Under What Circumstances May an Operator Not Begin Operations

15 Business Days After Filing a Notice?

Under proposed Sec. 3809.313, an operator couldn't begin operations

15 business days after filing a notice in certain circumstances,

including if BLM determines that an on-site visit is necessary

(proposed Sec. 3809.313(d)). We would like to clarify that if BLM

determined that a site visit is necessary to determine if a proposed or

listed threatened or endangered species is present or would be affected

by the planned operation, we would notify the operator not to begin

operations until

[[Page 57618]]

the site visit could take place and BLM could make its determination.

VIII. How Would BLM Pay for Interim Site Care and Maintenance Until

We Issue a Reclamation Contract?

Proposed Sec. 3809.552 addresses what an individual financial

guarantee must cover. Based on our experience with recent bond

forfeitures, we believe it is important to extend the provisions of

that section to cover situations where interim site care and

maintenance is necessary while BLM or a State regulator is developing

and executing third-party reclamation contracts. For example, when an

operator forfeits a financial guarantee, the site of operations is

rarely reclaimed. BLM or the State regulatory must arrange for a third-

party contractor to complete reclamation. This process takes time,

during which site conditions usually deteriorate. We need the ability

to quickly redeem a portion of the financial guarantee to fund interim

site care and maintenance until the reclamation contract takes effect

so as to prevent adverse environmental impacts. This is consistent with

concerns expressed in the NAS study about mine closures.

We are including in this reopening notice proposed revisions to

previously proposed Sec. 3809.552. The revisions would require the

financial guarantee to cover any interim stabilization and

infrastructure maintenance costs needed to maintain the area of

operations in compliance with applicable environmental requirements

while third-party reclamation contracts are being developed and

executed. We would also require that the portion of the financial

guarantee set aside for this purpose be immediately redeemable by BLM.

See the proposed regulatory language at the end of this notice.

In addition, recent events at at least one closed mine make it

advisable to clarify that our current policy is that a surety continues

to be responsible for obligations that accrue while the surety's bond

is in effect, unless a suitable replacement bond or other financial

guarantee would cover those obligations. Even if a surety wishes to

cancel the bond or other financial guarantee, the surety would remain

responsible following the cancellation for obligations that accrue

while the surety held the bond, unless a subsequent bond or other

financial guarantee covers those obligations.

IX. Would BLM Allow State Director Review of Decisions?

Section 3809.800(a) of the February 9, 1999, proposed rule would

allow any person adversely affected by a decision made under the 3809

regulations to appeal the decision to the Interior Board of Land

Appeals (IBLA). See 64 FR 6468. The proposal also stated that review of

a decision by the BLM State Director would take place if consistent

with part 1840 of Title 43, Code of Federal Regulations. Currently,

part 1840 does not authorize State Director review.

It may be in the best interest of operators and other affected

parties to have the opportunity to pursue a possibly shorter appeals

avenue than that provided by IBLA. We are proposing adding provisions

to subpart 3809 that would allow both operators and other adversely

affected parties the option of appealing first to the BLM State

Director. This would not be a mandatory step, and a party could proceed

directly to the IBLA if he or she so chooses. If an appeal is filed

with the BLM State Director, the State Director would have 7 business

days from receipt of the appeal to decide whether to consider it. If

so, the State Director would follow the procedures referenced in part

1840. If an affected party appeals to the State Director and another

affected party appeals to IBLA, then the State Director would defer to

IBLA. Affected parties would have the right to appeal the State

Director's decision to IBLA. We request comment from the general public

and the regulated industry on whether allowing the option of appealing

to the BLM State Director would be beneficial.

X. How Did BLM Meet Its Procedural Obligations?

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires a regulatory agency

to evaluate each proposed rule and consider alternatives that would

minimize the rule's impact on small entities (5 U.S.C. 601-612).

However, the RFA ``does not require that agencies necessarily minimize

a rule's impact on small entities if there are significant legal,

policy, factual, or other reasons for the rule's having such an

impact.'' (The Regulatory Flexibility Act: An Implementation Guide for

Federal Agencies, U.S. Small Business Administration, Office of

Advocacy, Washington, DC, 1998, p. 12).

The RFA permits the head of a federal agency to forego the

preparation of an initial regulatory flexibility analysis (IRFA) upon a

written certification that a rule will not have a ``significant

economic impact on a substantial number of small entities'' (SBA, p.

22). In addition, ``* * * if an agency is uncertain of the impact, it

is recommended that the agency err on the side of caution and perform

an IRFA with the available data and information, and solicit comments.

* * * Then if appropriate the agency can certify on the final rule''

(SBA, p. 23).

In our February 9, 1999, proposed rule, we determined under the RFA

that the proposed rule would not have a significant economic impact on

a substantial number of small entities (64 FR 6449). We reached this

initial conclusion on the basis of the initial regulatory flexibility

analysis (IRFA) we prepared for the proposed rule. Under the RFA, an

agency must publish and make available for public comment an IRFA,

unless the agency can certify based on a preliminary assessment or

threshold analysis that the proposed rule will not have a significant

economic impact on a substantial number of small entities. The IRFA

describes the impacts of the proposed alternatives on small entities

and describes any alternatives that would minimize the impact while

accomplishing the stated objectives. BLM released an IRFA with the

proposed rule on February 9, 1999. The comment period for this IRFA

ended May 10, 1999. We are reopening it for 120 days. BLM's analysis of

the public record developed in connection with the proposed rule will

help it determine whether or not the final version of the rule will

have a significant economic impact on a substantial number of small

entities. A final regulatory flexibility analysis will be prepared if

it is determined that the final rule will have a significant effect on

a substantial number of small entities.

Paperwork Reduction Act

Several commenters on the proposed rule expressed the view that,

based on their experience with the existing regulations, BLM

underestimated the paperwork burden associated with the proposed rule.

It appears from the comments that the commenters assumed that our

burden estimate included all paperwork burden, both existing and

proposed, as if no other State or Federal agencies imposed any

paperwork burden on mining operations.

We would like to point out that, in accordance with the Paperwork

Reduction Act and the Office of Management and Budget's instructions

for estimating paperwork burden, we are estimating only the increment

of paperwork imposed by the proposed regulations over and above the

paperwork burden imposed by the existing regulations. We also correctly

didn't include in our estimate any

[[Page 57619]]

paperwork requirements contained in the proposed rule that would merely

duplicate paperwork requirements imposed by other agencies, either

Federal or State. If an operator has to give certain information to a

State agency, the burden of also supplying that exact same information

to BLM is relatively small. (Indeed, many of the same commenters noted

that much of the proposed rule duplicated existing State requirements.)

Because of this possible misunderstanding, we are re-examining the

information collection burden that would be imposed by the proposed

rule. In the near future, we will release a revised paperwork burden

estimate for public comment.

Other

The proposals described in this notice fall within the scope of the

analyses prepared for the proposed rule. Please refer to the discussion

of how BLM is meeting its procedural obligations contained in the

proposed rule for further information (Feb. 9, 1999, 64 FR 6422, 6449).

List of Subjects in 43 CFR Part 3800

Administrative practice and procedure, Environmental protection,

Intergovernmental relations, Land Management Bureau, Mines, Public

lands-mineral resources, Reporting and recordkeeping requirements,

Surety bonds, Wilderness areas.

Dated: October 19, 1999.

Sylvia V. Baca,

Acting Assistant Secretary, Land and Minerals Management.

Accordingly, BLM proposes to amend its proposed rule published on

February 9, 1999 (64 FR 6422) as set forth below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

Subpart 3809--Surface Management

1. The authority citation for part 3800 continues to read as

follows:

Authority: 16 U.S.C. 1280; 30 U.S.C. 22; 30 U.S.C. 612; 43

U.S.C. 1201; and 43 U.S.C. 1732, 1733, 1740, 1781, and 1782.

2. In Sec. 3809.552 as proposed at 64 FR 6463, revise paragraph (a)

by adding a sentence at the end and add paragraph (d) to read as

follows:

Sec. 3809.552 What must my individual financial guarantee cover?

(a) * * * The financial guarantee must also cover any interim

stabilization and infrastructure maintenance costs needed to maintain

the area of operations in compliance with applicable environmental

requirements while third-party contracts are developed and executed.

* * * * *

(d) When BLM identifies a need for it, you must establish that

portion of the financial guarantee used to conduct site stabilization

and infrastructure maintenance in a funding mechanism that would be

immediately redeemable by BLM. BLM would use the funds to maintain the

area of operations in a safe and stable condition that complies with

applicable environmental requirements during the period needed for bond

forfeiture and reclamation contracting procedures.

[FR Doc. 99-27765 Filed 10-25-99; 8:45 am]

BILLING CODE 4310-84-P